MEDICAL MALPRACTICE

A Study To End the Frivolous Malpractice Lawsuit Myth
This article written by our partner Jeffrey B. Bloom in 2006 is just as relevant today as it was then.

“Last week, within days of the U.S. Senate performing its annual rite of taking up and then denying cloture to a bill to limit the rights of medical malpractice victims and cap damages in medical malpractice cases, a study was released which clearly demonstrates that our current tort system is working quite well in ensuring that the vast majority of cases are valid claims and that frivolous or non-meritorious malpractice cases are rarely brought and hardly ever result in damages being unjustly paid.

The study,” Claims, Errors, and Compensation Payments in Medical Malpractice Litigation,” was conducted by a prestigious group from the Harvard School of Public Health and the Harvard Risk Management Foundation and was published in the May 11, 2006 issue of the New England Journal of Medicine. Physicians trained in reviewing malpractice claims were assigned malpractice files randomly selected from 1452 closed medical malpractice files provided to the group by five malpractice insurance companies in four regions in the U.S. The goal of the study was to determine if so-called tort-reformers are correct when they claim that frivolous malpractice claims are common and costly and are a substantial source of waste in the health care and legal system. The study supports what lawyers involved in malpractice litigation have been stating for years: the vast majority of malpractice cases brought are valid and the claimants are rightfully entitled compensation.

In the study, meritorious cases outnumbered non-meritorious case by 2 to 1. Presumably, in many of the cases deemed by the reviewers to be “non-error,” issues of credibility were resolved in the medical providers favor without the benefit of seeing the witnesses testify and be cross examined in order to make a fair appraisal as to which party is telling the truth. Of the claims that these reviewers opined were not caused by medical error, the vast majority received no recovery at all. Eighty percent of the claims examined involved injuries deemed to have caused significant or major disability or death. In only 3 percent of the claims, no adverse outcome from medical care was evident. Of the 37 claims which were deemed to involve no injury, only a handful of these claimants received any monetary award.

The authors of the study also found, “[T]he malpractice system performs reasonably well in its function of separating claims without merit from those with merit and compensating the latter.” As further proof of how well the system works, most meritorious cases were settled without the need for a jury verdict. Malpractice insurers and hospital risk managers are well trained to recognize valid claims and often choose to resolve those claims by settlement, thereby reducing defense costs and the risk of larger damage awards from a jury. For these reasons, settlements were reached in 85% of all the malpractice claims evaluated. Of the remaining 15% of cases which went to verdict, plaintiffs rarely won. According to the study, 79% of the verdicts of the cases reviewed which went to trial resulted in no award for the plaintiff, including a significant number of meritorious claims which resulted in verdicts for the defendant-medical provider. While the study found that non-error claims were more likely to reach trial than error claims, 27% of claims in which the claimants suffered injuries resulting from medical errors received no compensation. In other words, if there is an injustice in the system, it’s more likely that the victims of malpractice suffer the inequitable result rather than medical providers Perhaps we should label this injustice a successful “frivolous defense.”

The study also dispelled the proclamations of President Bush, Senator Frist, et al. that our tort system is overrun by greedy trial lawyers bringing meritless malpractice lawsuits. The authors of the study wrote: “The profile of non-error claims we observed does not square with the notion of opportunistic trial lawyers pursuing questionable lawsuits in circumstances in which their chances of winning are reasonable and prospective returns in the event of a win are high. Rather, our findings underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultations with experts, and sharing of information that litigation triggers.” In sum, the authors found that “portraits of a malpractice system that is stricken with frivolous litigation are overblown.” Furthermore, if the costs of malpractice litigation including compensation paid, attorney’s fees, litigation and court costs in all the cases the reviewers labeled as non-error were eliminated, the total savings for the system would amount to 13% of the total cost– a far cry from the savings promised by Bush-minded tort reformers.

Rather than engaging in an honest debate and seeking ways to reduce medical errors and to provide malpractice insurance premium relief for physicians, these tort reformers instead have perpetrated the myth that frivolous malpractice lawsuits are the root cause of our country’s rising medical costs. Senator John Ensign (R.-NV), the chief sponsor of the latest attempt by the U.S. Senate to have the Federal government usurp the power of the states and, in a clear affront to federalism, put in place a nation-wide cap in malpractice cases, stated in support of his bill (S.22), “The number of frivolous lawsuits clogging our system is what we need to deal with.” Likewise, Senator Tom Coburn (R-OK), a co-sponsor of the bill and a physician made the following outrageous statement on the floor of the Senate: “Only 16 percent of the lawsuits that are filed across the entire country have any merit whatsoever.” Similarly disingenuous, Senator Conrad Burns (R-MT), another co-sponsor, proclaimed on the Senate floor that the only people who would be hurt by caps on damages are not the severely injured victims of malpractice but rather: “the folks who make a living in frivolous lawsuits.”

Not only does this Harvard study clearly disprove the notion that frivolous lawsuits are frequent, let alone “clogging the system,” the argument that capping damages in cases involving significantly injured malpractice victims will somehow reduce frivolous claims is patently absurd. . Perhaps now that there is documentation that number of so-called frivolous cases brought is quite few with a rather small cost to the system, the debate about medical malpractice litigation will turn honest and the President, Senators Frist, Ensign,Coburn, Burns and like-minded so-called tort-reformers will reveal to the public their true agenda–they seek to save money for the insurance industry at the expense of victims of medical negligence.

Hopefully, this non-partisan study, undertaken by one of the nation’s most prestigious schools studying public health issues will put to rest the nonsensical notion that plaintiff’s trial lawyers are flooding the courts with meritless malpractice cases which usually result in no compensation being awarded and from which a contingent fee could be earned. To the contrary, before bringing a medical malpractice lawsuit, plaintiff s lawyers are well aware that only meritorious claims with significant injuries are likely to result in a recovery. As the study proves, when an attorney working for a contingent fee agrees to assume the risk of bringing a costly and time consuming medical malpractice case, it’s likely to be a valid claim with significant injuries. Furthermore, when a claimant in a malpractice case receives an award of damages, either by settlement or verdict, he or she was likely to have been a victim of true malpractice.